administra tjve actions ko££ and esas... · epa enforcement accounts receivable control number...

EPA ENFORCEMENT ACCOUNTS RECEIVABLE CONTROL NUMBER FORM FOR ADMINISTRA TJVE ACTIONS

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in the ORC CRAA) at 918-1113 Office & Mail Code Phone number

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INSTALLMENTS OF:

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4th $ on ------5•h $ ____ __ on

For RHC Tracking Purposes:

Copy of Check Received by RHC _ _____ Notice Sent to Finance _ ___ _

TO BE FILLED OUT BY LOCAL FINANCIAL MANAGEMENT OFFICE:

IFMS Accounts Receivable Control Number ____ _ _ ________ _

If you have any questions call: in the Financial Management Office Phone Number

U.S. Environmental Protection Agency Region 1

January 3, 2017

VIA HAND DELIVERY

Wanda I. Santiago Regional Hearing Clerk U.S. EPA, Region 1 5 Post Office Square, Suite 100 Mail Code: ORA18-1 Boston, MA 02109-3912

5 Post Office Square - Suite 100 Boston, MA 02109-3912

RECEIVED

EPA ORC i}J') Office of Regional Hearing Clerk

Re: In the Matter of: J.F. White Contracting Co. and Massachusetts Department of Transportation, Docket No. CW A-01-2017-0009

Dear Ms. Santiago,

Enclosed for filing, please find a Consent Agreement and Final Order (CAFO) both initiating and settling the matter referenced above.

Thank you for your attention to this matter.

Sincerely,

Je

Enclosure

cc: Tracy W. Klay, Acting Deputy General Counsel/Aeronautics Counsel MassDOT and MBTA Robin Main, Esq., Hinckley Allen Snyder LLP

UNITED ST ATES ENVIRONMENT AL PROTECTION AGENCY REGION 1

) IN THE MATTER OF ) Docket No. CWA-01-2017-0009

) J.F. White Contracting Company ) 10 Burr St. ) Framingham, Massachusetts 01701 ) CONSENT AGREEMENT AND

) FINAL ORDER and )

) Massachusetts Department of ) RECEIVED Transportation ) 10 Park Plaza, Suite 4160 ) J Boston, Massachusetts 02116 )

ii>~ ) EPA ORC

) Office of Regional Hearing Clerk

Deerfield I-91 Construction Site ) Deerfield, Massachusetts )

)

The Regional Administrator of the United States Environmental Protection

Agency, Region 1 ("EPA") issues this Consent Agreement and Final Order ("CAFO") to

J.F. White Contracting Company ("J.F. White'') and the Massachusetts Department of

Tra.Ii.sportation ("MassDOT') ("Respondents"). EPA alleges that Respondents violated

Section 301(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a). The parties agree

to resolve this action by the issuance of this CAFO as provided under 40 C.F .R.

§ 22.13(b) and 22.18(b )(2) of EPA' s "Consolidated Rules of Practice Governing the

Administrative Assessment of Civil Penalties and the Revocation/Termination or

Suspension of Permits," 40 C.F.R. Part 22 ("Part 22").

CONSENT AGREEMENT AND FINAL ORDER In re: J.F. White Contracting Company and MassDOT Docket No. CWA-01 -2017-0009

US EPA, REGION I 5 Post Office Square, Suite I 00 Boston, MA 02 I 09-39 I 2

I. DESCRIPTION OF VIOLATIONS

1. EPA alleges that Respondents discharged stormwater containing pollutants into

navigable waters of the United States, in violation of Section 301(a) of the CWA,

33 U.S.C. § 131 l(a).

Statutory and Regulatory Authority

2. EPA takes this action under the authority of Section 309(g) of the CW A,

33 U.S.C. § 1319(g). Pursuant to Section 309(g)(l) of the CWA, 33 U.S.C. § 1319(g)(l)

and 40 C.F.R. § 22.38(b), EPA has notified the Commonwealth of Massachusetts of this

action.

3. EPA has provided a thirty-day opportunity for public notice and comment on this

proposed CAFO, pursuant to Section 309(g)(4)(A) of the CWA, 33 U.S.C.

§ 1319(g)(4)(A), and 40 C.F.R. § 22.45(b).

4. Section 301(a) of the CWA prohibits the discharge of pollutants by any person

into the navigable waters of the United States except in compliance with, among other

things, a National Pollutant Discharge Elimination System ("NPDES") permit issued

under Section 402 of the CWA, 33 U.S.C. § 1342. ·

5. Section 502(5) of the CWA, 33 U.S.C. § 1362(5), defines "person" to include "an

individual, corporation, [or] partnership."

6. Section 502(6) of the CWA, 33 U.S.C. § 1362(6), defines "pollutant" to include,

inter alia, dredged spoil, garbage, rock, sand and cellar dirt.

7. Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines "navigable waters" as

2 CONSENT AGREEMENT AND FlNAL ORDER Jn re: J.F. White Contracting Company and MassDOT Docket No. CWA-01-2017-0009

US EPA, REGION I 5 Post Office Square, Suite I 00 Boston, MA 02109-3912

"the waters of the United States, including the territorial seas."

8. Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines "discharge ofa

pollutant" to include "any addition of any pollutant to navigable waters from any point

source."

9. Section 502(14) of the CWA, 33 U.S.C. § 1362(14), defines "point source" to

include "any discernible, confined and discrete conveyance . .. from which pollutants . ar~

or may be discharged."

10. Section 402(p)(2)(B) of the CWA, 33 U.S.C. § 1342(p)(2)(B), specifies that a

NPDES permit is required for any stormwater "discharge associated with industrial

activity." See also 40 C.F.R. § 122.26(a)(l)(ii).

11. Section 308(a) of the CWA, 33 U.S.C. § 1318(a), authorizes EPA to require the

owner or operator of any point source to provide such information as EPA may

reasonably require to carry out the objectives of the CWA, including, among other things,

the development and issuance ofNPDES permits pursuant to CWA section 402,

33 U.S.C. § .1342.

12. Pursuant to Sections 308(a) and 402 of the CWA, EPA promulgated stormwater

discharge regulations at 40 C.F.R. § 122.26.

13. Forty C.F.R. § 122.26(b)(l3) defines "storm water" to include storm water runoff,

snow melt runoff, and surface runoff and drainage.

14. Forty C.F.R. § 122.26(b)(14)(x) defines "storm water discharge associated with

industrial activity" to include stormwater discharges from construction activities,

including clearing, grading and excavation activities, that result in a disturbance of five

3 CONSENT AGREEMENT AND FINAL ORDER Jn re: J.F. White Contracting Company and MassDOT Docket No. CWA-01-2017-0009

US EPA, REGION 1 5 Post Office Square, Suite I 00 Boston, MA 02109-3912

acres or more of total land area.

15. Forty C.F.R. 122.26(c) requires dischargers of storm water associated with

"industrial activity" to apply for an individual permit or to seek coverage under a

promulgated general permit.

16. In February 1998, EPA issued the NPDES General Permit for Storm Water

Discharges from Construction Activities ("CGP"), 63 Fed. Reg. 7858 (Feb. 17, 1998).

EPA subsequently re-issued the CGP in 2003, 2008 and 2012. The 2012 CGP became

effective on February 16, 2012 [See 77 FR 12286 (February 29, 2012)]. The 2012 CGP

authorizes, subject to conditions contained therein, the discharge of pollutants in

stormwater runoff associated with construction activities, including construction

activities within the Commonwealth of Massachusetts (Permit Number: MARIOOOOO).

17. Part 1.4 of the 2012 CGP requires "operators" to submit a notice of intent

("NOi") to seek coverage for stormwater discharges associated with construction

activities to EPA at least fourteen days prior to commencing construction.

18. Appendix A of the 2012 CGP defines "operator" as "any party associated with a

construction project" that has either "operational control over construction plans and

specifications, including the ability to make modifications to those plans and

specifications" or "day-to-day operational control of those activities at a project that are

necessary to ensure compliance with the permit conditions."

19. Prior to submitting an NOi, Part 7 of the 2012 CGP requires operators to develop

an adequate stormwater pollution prevention plan ("SWPPP") addressing the portions of

the project for which they are operators. The SWPPP must meet specific requirements

4 CONSENT AGREEMENT AND FINAL ORDER In re: J.F. White Contracting Company and MassDOT Docket No. CWA-01-2017-0009

US EPA, REGION 1 5 Post Office Square, Suite 100 Boston, MA 02109-3912

and include certain information such as: a list of all other site operators (Part 7.2.4); the

sequence and estimated dates for construction activities (Part 7.2.5); a site map that

includes, among other things, stormwater discharge locations and locations of stormwater

control measures (Part 7.2.6); and a description of all stormwater control measures that

will be installed and maintained to meet the requirements of Part 2of2012 CGP (Part

7.2.10).

20. Part 2 of the 2012 CGP requires operators to "design, install, and maintain erosion

and sediment controls that minimize the discharge of pollutants" from construction

activities into the nation' s waters. The term "minimize," as used in Part 2, is further

defined in Appendix A as meaning "to reduce and/or eliminate to the extent achievable

using control measures that are technologically available and economically practicable

and achievable in light of the best industry practice."

21. Part 2.2 of the 2012 CGP sets forth the general erosion and sediment control

requirements applicable to all sites, including those related to the protection of storm

drain inlets (Part 2.1.2.9).

22. Part 2.2 of the 2012 CGP sets forth requirements for the stabilization of exposed

portions of a site. Part 2.2.1. I of the 2012 CGP requires initiation of soil stabilization

measures immediately whenever earth-disturbing activities have permanently or

temporarily ceased on any portion of a construction site. Earth-disturbing activities have

permanently ceased when clearing and excavation within any area of a construction site

that will not include permanent structures has been completed. Earth-disturbing activities

have temporarily ceased when clearing, grading, and excavation within any area of the

5 CONSENT AGREEMENT AND FTNAL ORDER In re: J.F. White Contracting Company and MassDOT Docket No. CWA-01-2017-0009

US EPA, REGION I 5 Post Office Square, Suite I 00 Boston, MA 02 109-3912

site that will not include permanent structures will not resume for a period of 14 or more

calendar days, but such activities will resume in the future. In addition, Part 2.2.2 of the

2012 CGP sets forth the criteria for adequate stabilization.

23. Section 309(g) of the CWA, 33 U.S.C. § 1319(g), provides for the assessment of

penalties for violations of Section 301(a) of the CWA, 33 U.S.C. § 1311(a).

General Allegations

24. J.F. White and MassDOT are operators of the 1-91 Deerfield River and Stillwater

Road and Lower Road bridges construction project located in Deerfield, Massachusetts

("the Site"). The project at the Site involves the replacement of two pairs of bridges and

the relocation of a section of the northbound lanes ofl-91. The estimated area to be

disturbed at the Site for the Project was approximately 32 acres.

25. MassDOT is an agency of the Commonwealth of Massachusetts and has its

principle office at 10 Park Plaza, Boston, Massachusetts.

26. J.F. White is a Massachusetts corporation with a principal place of business at 10

Burr St., Framingham, Massachusetts.

27. Respondents are "persons" as defined at Section 502(5) of the CWA, 33 U.S.C.

§ 1362(5).

28. Respondents both submitted NOis to EPA for coverage under the 2012 CGP for

the Site and received coverage under the 2012 CGP (Permit Tracking number

MAR12AC41 for J.F. White) (Permit Tracking number MAR12AC55 for MassDOT).

29. Respondents are "operators" at the Site as defined at Appendix A the 2012 CGP

and 40 C.F.R. § 122.2.


US EPA, REGION I 5 Post Office Square, Suite 100 Boston, MA 02109-3912

30. The stormwater discharges from the Site are "storm water discharges from an

industrial activity," as defined at 40 C.F.R. § 122.26(b)(l4)(x).

31. The stormwater discharges from the Site are conveyed through ditches, culverts,

swales, gullies, channels, catch basins and storm drains from disturbed areas of the Site

and are allegedly contaminated with sand, dirt, sediment, suspended solids, residues of

construction material, and turbidity.

32. Any sand, dirt, sediment, suspended solids, residues of construction material, and

turbidity contained in the stormwater discharges from the Site are "pollutant[s]" within

the meaning of Section 502(6) of the CWA, 33 U.S.C. § 1362(6). The stormwater

discharges from the Site allegedly result in the "discharge of pollutants," as defined at

Section 502(12) of the CWA, 33 U.S.C. § 1362(12).

33. The ditches, culverts, swales, gullies, and channels at the Site and the various

storm drains and catch basins along the highway are "point source[ s ]" within the meaning

of Section 502(14) of the CWA, 33 U.S.C. § 1362(14).

34. The stormwater discharges from the Site flow offsite into the Deerfield River

which flows into the Connecticut River which flows into Long Island Sound.

35.· The Deerfield River, the Connecticut River and Long Island Sound are all

"navigable waters," as defined at S~ction 502(7) of the CWA, 33 U.S.C. § 1362(7).

36. On April 12, 2016, EPA Region 1 conducted a CW A compliance inspection of

the Site to evaluate Respondents compliance with the 2012 CGP (the "EPA Inspection").

37. On April 12, 2016, EPA alleges that not all drain inlets were properly protected.

38. On April 12, 2016, and based on additional information EPA has gathered, EPA

7 CONSENT AGREEMENT AND FINAL ORDER Jn re: J.F. White Contracting Company and MassDOT Docket No. CWA-01-2017-0009


alleges that Respondents had failed to stabilize the disturbed portions of the median and

shoulder of the roads south of the Deerfield River in and around March 2016.

Alleged Violations

Failure to Comply with CGP

39. By failing to ensure that all storm drain inlets were properly protected in April

2016, Respondents violated Part 2.1.2.9 of the CGP.

40. By failing to stabilize the disturbed portions of the median and shoulder of the

roads south of the Deerfield River from January through March 2016, Respondents

violated Part 2.2.1.1 of the 2012 CGP.

41. By discharging storm water associated with industrial activity into waters of the

U.S. in violation of the terms and conditions of a permit issued pursuant to Section 402 of

the CWA, and by failing to comply with all the conditions in the 2012 CGP, Respondents

violated Section 30l(a) of the CWA from January through April 2016.

42. Section 309(g) of the CWA, 33 U.S.C. § 13 l 9(g), provides for the assessment of

penalties for violations of Section 301(a) of the CWA, 33 U.S.C. § 131l(a).

II. CONSENT AGREEMENT

43. ·EPA and Respondents agree that settlement of this cause of action is in the public

interest and that entry of this CAPO without further litigation is the most appropriate

means ofresolving this matter. Therefore, before taking any testimony, upon the

pleadings, without adjudication of any issue of fact or law, and upon consent and

agreement of the parties, it is hereby ordered and adjudged as follows:

44. Respondents admit the jurisdictional allegations set forth in Section I above and



hereby waive any defenses they might have as to jurisdiction and venue.

45. Respondents neither admit nor deny the factual allegations contained in Section I

above or that any violations of the CGP or CWA occurred.

Waiver of Rights

46. Respondents waive the right to a hearing under Sections 309(g)(2)(B) of the

CWA, 33 U.S.C. § 1319(g)(2)(B), and to any appeal of the Final Order in this matter

under Sections 309(g)(8)(B) ofthe CWA, 33 U.S.C. § 1319(g)(8)(B). Respondents

consents to the issuance of a Final Order without further adjudication.

Penalty

4 7. EPA proposes, and Respondents consent to, the assessment of a civil penalty of

$21,600 for all violations contained in this CAFO.

Payment Terms

48. In agreeing to the penalty described in paragraph 4 7 above, EPA has taken into

account the statutory penalty factors at Sections 309(g)(3) of the CWA, 33 U.S.C.

§ 1319(g)(3).

49. Respondents shall pay a total penalty of $21,600 for violations of Section 301 of

the CWA, 33 U.S.C. §and 1311.

50. Respondents shall make the payments in the following manner:

a. $21,600 shall be due within 10 calendar days of the final date of

this CAFO;

b. Respondents shall make this payment by cashier's or certified

check, payable to "Treasurer, United States of America,"


US EPA, REGION I 5 Post Office Square, Suite 100 Boston, MA 02109-3912

referencing the title and docket numbers of the action ("Jn the

Matter of JF. White Contracting Company and MassDOT,

Docket No. CWA-01-2017-0009). The payment shall be mailed

via regular U.S. Postal Service mail, to:

U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P. 0. Box 979077 St. Louis, MO 63197-9000

51. Respondents shall note the case name and respective docket number (Jn the

Matter of JF. White Contracting Company and MassDOT, Docket No. CWA-01-2017-

0009) in cover letters accompanying the payments and shall provide copies of the checks

and letters to:

and

Wanda I. Santiago, Regional Hearing Clerk U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 100 Mail Code ORA18-1 Boston, MA 02109-3 912

Jeffrey Kopf, Senior Enforcement Co.unsel Office of Environmental Stewardship U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 100 Mail Code OES04-4 Boston, MA 02109-3 912

52. The civil penalty provided under this CAFO, and any interest, nonpayment

penalties, and charges described in this CAFO, shall represent penalties assessed by EPA

within the meaning of26 U.S.C. § 162(f) and are not tax deductible for purposes of

10 CONSENT AGREEMENT AND FINAL ORDER In re: J.F White Contracting Company and MassDOT Docket No. CWA-01-2017-0009


federal , state, or local law. Accordingly, Respondents agree to treat all payments made

pursuant to this CAFO as penalties within the meaning of26 U.S.C. § 162(t), and further

agree not to use those payments in any way as, or in furtherance of, a tax deduction under

federal , state, or local law.

General Provisions

53. Pursuant to Sections 309(g)(9) of the CWA, 33 U.S.C. § 13 l 9(g)(9), a failure by

the Respondents to pay the penalty assessed by this CAFO in full by its due date shall

subject Respondents to a civil action to collect the assessed penalty, plus interest at

current prevailing rates, from the date when this CAFO becomes final. The rate of

interest assessed shall be at the rate set forth in 31 C.F .R. § 90 I. 9(b ), promulgated under

31 U.S.C. § 3717. Any person who fails to pay on a timely basis the amount of an

assessed penalty shall be required to pay, in addition to such amount and interest,

attorney' s fees, costs for collection proceedings, and a quarterly nonpayment penalty for

each quarter during which such failure to pay persists. Such nonpayment penalty shall be

in an amount equal to twenty percent of the aggregate amount of such person' s penalties

and nonpayment penalties that are unpaid as of the beginning of such quarter. In any

such collection action, the validity, amount, and appropriateness of the penalty shall not

be subject to review.

54. The Final Order shall be binding upon Respondents and Respondents' officers,

directors, agents, servants, employees, successors, or assigns.

55. The Final Order does not constitute a waiver, suspension, or modification of the

requirements of CW A, or any regulations promulgated thereunder, and does not affect the

l l CONSENT AGREEMENT AND FINAL ORDER Jn re: J.F. White Contracting Company and MassDOT Docket No. CWA-01-2017-0009


right of the EPA Administrator or the United States to pursue any applicable injunctive or

other equitable relief or criminal sanctions for any violation of law. Payment of the

penalty pursuant to thi s Consent Agreement resolves only Respondents' alleged liability

for federal civil penalties for the alleged violations herein.

56. Except as described in paragraph 53 of this Consent Agreement, each party shall

bear its own costs and attorney' s fees in connection with the action resolved by this

CAFO.

57. The undersigned representative of each Respondent certifies that he or she is fully

authorized to enter into the terms and conditions of thi s CAFO and to execute and legally

bind said Respondent to it.

Albe ere aucells, Exec. Vice President J.F. White Contracting Company

FOR Massachusetts Depai1ment of Transportation

Thomas J. Tinlin~ Highway Administrator, Massachusetts Department of Transportation

ntal Protection Agency

12 CONSENT AGREEMENT AND FINAL ORDER In re: J.F White Contracting Company and MassDOT Docket No. CW A-01 -2017-0009

Date: ti /'f b I' I I

Date: --~---

Date: t.• ( L-'L / l 'P

US EPA, REGION I 5 Post Office Square, Suite 100 Boston, MA 02 109~3912

right of the EPA Administrator or the United States to pursue any applicable injunctive or

other equitable relief or criminal sanctions for any violation of law. Payment of the

penalty pursuant to this Consent Agreement resolves only Respondents' alleged liability

for fede!al civil penalties for the alleged violations herein.

56. Except as described in paragraph 53 of this Consent Agreement, each party shall

bear its own costs and attorney's fees in connection with the action resolved by this

CAFO.

57. The undersigned representative of each Respondent certifies that he or she is fully

authorized to enter into the terms and conditions of this CAFO and to execute and legally

bind said Respondent to it.

FOR J.F. White Contracting Company

Date: ------Peter White, President J.F. White Contracting Company

FOR Mass~s Department of Transportation

~ r;;? ~--- Date: //-/6'·/75' ---'--------~ Thomas J. Tinlin, Highway Administrator, · Massachusetts Department of Transportation

FOR U.S. Environmental Protection Agency

Susan Studlien, Director Office of Environmental Stewardship U.S. EPA, Region 1

CONSENT AGREEMENT AND FINAL ORDER 12

In re: J.F. White Contracting Company and MassDOT Docket No. CWA-01-2017-0009

Date: ------

US EPA, REGION 1 5 Post Office Square, Suite 100 Boston, MA 02109-3912

III. FINAL ORDER

The foregoing Consent Agreement is hereby approved and incorporated by

reference into this Order.

Respondents are hereby ordered to comply with the terms of the above Consent

Agreement, which will become final 30 days from the date it is signed by the

Regional Administrator unless a petition to set aside the order is filed by a commenter

pursuant to Section 309(g)(4)(C) of the CWA, 33 U.S.C. § 1319(g)(4)(C) and

40 C.F.R. Part 22.

~A~)mf!cs H. Curtis Spalding r . Regional Administrator U.S. EPA, Region 1


Date: I /3 /I 7


In the matter of JF White Contracting Co. and Massachusetts Department of Transportation Docket No. CW A-01-2017-0009

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Consent Agreement and Final Order has been sent to the following persons on the date noted below:

Original and one copy, hand-delivered:

Copy, by Certified Mail, Return Receipt Requested

Ms. Wanda Santiago Regional Hearing Clerk U.S. EPA, Region I (ORA18-1) 5 Post Office Square, Suite 100 Boston, MA 02109-3912

Tracy W. Klay, Acting Deputy General Counsel/ Aeronautics Counsel . MassDOT and MBTA 10 Park Plaza, Room 7760 Boston, MA 02116

and

Robin Main, Esq. ·Hinckley Allen Snyder LLP 100 Westminster St., Suite 1500 Providence, RI 02903

Jeffr Kop Senior Enforcement Counsel U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 100 (OES04-3) Boston, MA 02109-3912 Tel (617) 918-1796 Fax (617) 918-0796

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